Citation Nr: 0919599
Decision Date: 05/26/09 Archive Date: 06/02/09
DOCKET NO. 04-41 315 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased rating for asthma, currently
evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Megan L. Engebretson, Associate Counsel
INTRODUCTION
The Veteran had active service from June 1955 until March
1958.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2003 rating decision from the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida.
This case was previously before the Board in June 2007,
February 2008, and July 2008 when it was remanded for further
development.
The Veteran was scheduled for a Video Conference Hearing in
February 2009; however, he failed to appear. Under the
applicable regulation, if an appellant fails to appear for a
scheduled hearing and a request for postponement has not been
received and granted, the case will be processed as though
the request for a hearing had been withdrawn. 38 C.F.R.
§ 20.702 (d) (2008). Accordingly, this Veteran's request for
a hearing is considered withdrawn.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The Veteran seeks an increased rating for his service-
connected asthma disability, currently rated as 10 percent
disabling. The Veteran filed his most recent claim for an
increased rating for service-connected asthma in May 2003.
The Veteran stated in his January 2007 Travel Board hearing
that he receives continuous treatment for asthma at the
Tampa, Florida VA Medical Center; however, the claims file
only contains records through June 2007.
VA is required to make reasonable efforts to help a claimant
obtain records relevant to his claim, whether or not the
records are in Federal custody. See 38 U.S.C.A.
§ 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2007).
In Bell v. Derwinski, 2 Vet. App. 611 (1992), the U.S. Court
of Appeals for Veterans Claims held that VA has constructive
notice of VA generated documents that could reasonably be
expected to be part of the record, and that such documents
are thus constructively part of the record before the
Secretary and the Board, even where they are not actually
before the adjudicating body. Accordingly, the Board has no
discretion and must remand the claims to obtain the VA
clinical records pertaining to the Veteran's treatment for
asthma dated since June 2007 to the present.
The Veteran was afforded a VA Compensation and Pension (C &
P) examination in July 2003. At that time the Veteran
expressed a history of symptomatology similar to that claimed
in testimony at the January 2007 Travel Board hearing before
a judge no longer with the Board. The Veteran noted a
chronic and productive cough, especially at night, no
emergency room treatment for asthma, a positive response to
occasional use of medication, no incapacitating periods, and
no oxygen required. Upon examination, the examiner noted the
Veteran's lungs to be clear "with no acute disease." The
examiner also noted that the Veteran's pulmonary function
tests were "within normal limits."
In June 2007, the Board remanded the Veteran's claim for the
Veteran to be afforded a more recent C & P examination. In a
letter dated July 2, 2007, the Veteran was notified he was
schedule for a pulmonary examination on August 4, 2007. A
July 3, 2007 letter informed the Veteran that he was
scheduled for a pulmonary examination on July 28, 2007. On
July 3, 2007 the Veteran was notified via letter that the
August 4, 2007examination was cancelled. The Veteran failed
to report for the July 28, 2007 examination. In a letter
dated November 2007, the Veteran stated that he reported for
the August examination and was informed that he had missed
his appointment on July 28, 2007. The Veteran reported that,
although he was informed that he missed the July appointment,
he was examined on August 4, 2007. However, the Board notes
that there is no record of the examination in the claims
file.
VA has a duty to assist Veterans to obtain evidence needed to
substantiate a claim. 38 U.S.C.A. § 5103A; 38 § C.F.R. §
3.159. This duty to assist includes providing a thorough and
contemporaneous medical examination. Green v. Derwinski, 1
Vet. App. 121, 124 (1991).
The Veteran's July 2003 examination does not appropriately
assess the Veteran's current disability as it was conducted
almost six years ago. The claims file contains no record
from the August 2007 examination. Even if the results of the
August 2007 examination are associated with the file, the
information in this report is nearly two years old and will
not accurately reflect the current state of the Veteran's
asthma disability. As such, a new examination is necessary
prior to adjudication to determine the Veteran's current
level of disability from asthma.
Accordingly, the case is REMANDED back to the RO via the
Appeals Management Center in Washington, DC for the following
action:
1. Attempt to obtain and associate with
the claims folder VA medical records
pertaining to the Veteran that are dated
after June 2007.
2. Attempt to obtain and associate with
the claims folder the report of the VA C &
P examination performed in August 2007.
3. The Veteran should be afforded an
appropriate VA examination to determine the
nature, extent and severity of his asthma
disability. The claims folder should be
made available to the examiner for review
before the examination. The examiner
should note in the examination report that
the claims folder and the remand have been
reviewed. All indicated tests and studies
should be performed. The examiner should
set forth the complete rationale for all
opinions expressed and conclusions reached
in a legible report.
4. Thereafter, the AMC should readjudicate
the Veteran's claim. If the benefit sought
on appeal is not granted in full, the
Veteran and his representative should be
issued a supplemental statement of the case
and provided an opportunity to respond.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).